HISD CONSIDERS RANDOM DRUG SEARCHES

The War on Drugs at School vs. Teachers’ Expectation of Privacy

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy
Sinclair

Over the last two months sixteen Houston Independent School District
employees, including 11 teachers, have been arrested on drug charges—
mostly involving marijuana or prescription drugs found in parked vehicles
on school campuses. Two of the employees were arrested twice. Most of the
arrests came after anonymous tips, prompting HISD police to use drug-
sniffing dogs to hit on narcotics in the vehicles.

"This is a matter of great concern to us and we wanted to make sure that our
community understood that we will take whatever action is necessary to
make sure our schools are safe," HISD Superintendent Abelardo Saavedra
said in response to the sudden rash of arrests.

Besides pressing for the immediate termination of the arrested employees,

Saavedra informed the Houston Chronicle that the school district is
contemplating a plan to use drug sniffing dogs to search for narcotics in
employee parking lots in every HISD school.

Current HISD policy, according to the Chronicle, only permits random drug
tests for bus drivers, police officers, and other security personnel. While the
executive director of the Congress of Houston Teachers said he was a little
concerned that the drug-dog searches might violate civil liberties, Chuck
Robinson minimized his concern by adding that “we have to maintain public
confidence and trust in our employees.”

The Chronicle reported that Kevin Quinn, a regional director for the
National Association of School Resource Officers, did not see a legal
problem with randomly searching employee parking lots. "Basically, all
they're doing is sniffing the public air around the car, so there is no warrant
needed," Quinn said.

Will the searches by drug-sniffing dogs create a constitutional problem?

Ten years ago the Fifth Circuit Court of Appeals entered the constitutional
arena of teacher drug testing involving two Louisiana school districts. See:
United Teachers v. Orleans Parish Sch. Bd., 142 F.3d 853 (5th Cir. 1998). In
that case teachers and other employees challenged drug testing rules of two
Louisiana school boards that required employees injured in the course of
employment to submit a urine specimen. The teachers/employees said the
rules violated the Fourth Amendment of the United States Constitution and
provisions of the state constitution. Id., at 854.

The Fifth Circuit began its analysis of this Fourth Amendment issue by
pointing out that the challenged drug testing rules were part of a larger
regulatory scheme under Louisiana law that permitted state employee drug
testing as a condition of continued employment. Id. Further, since Louisiana
law prohibited workers’ compensation for any job-related injury caused by
substance abuse intoxication, an employer enjoyed the right to secure
drug/alcohol testing immediately after a job-related accident/injury. Id., at
855.

Pursuant to these statutory authorities, the Jefferson Parish School System

and the Orleans Parish School Board enacted rules that, as a condition of
continued employment, all school employees would not only be subject to
pre-employment drug screening but post-job-related-accident drug testing
involving workers’ compensation benefits. Id.

Finding the drug-testing rules constitutionally intrusive, the Fifth Circuit

held:

”Several relevant principles are settled. When a state orders the collection
and testing of urine, it conducts a search. Ordinarily there must be
‘individualized suspicion of wrongdoing’ to meet the Fourth Amendment’s
prohibition of unreasonable searches. There are exceptions based on ‘special
needs, beyond the normal need for law enforcement.’

”The two school boards require testing of all employees injured in the course
of employment without regard to the circumstances, even without any
suggestion that a triggering injury was caused by any misstep of the
employee to be tested. Our question is whether the school boards can fit
their testing rules within a special needs exception.
“The Supreme Court recently instructed that ‘when such special needs --
concerns other than crime detection -- are alleged in justification of a Fourth
Amendment intrusion, courts must undertake a context-specific inquiry,
examining closely the competing private and public interests advanced by
the parties.’ Directly to the point, ‘in limited circumstances, where the
privacy interests implicated by the search are minimal, and where an
important governmental interest furthered by the intrusion would be placed
in jeopardy by a requirement of individualized suspicion, a search may be
reasonable despite the absence of such suspicion.’

”The interest of the state asserted here to justify its drug testing is as well
defined by what it is not as well as what it is. We agree that evidence of drug
use on the job by teachers could identify a strong state interest. Teachers are
entrusted with this nation's most precious asset -- its children. We need not
lower the privacy expectations of teachers to that of students to observe that
the role model function of teachers, coaches, and others to whom we give
this responsibility adds heavy weight to the state interest side of the ledger in
justifying random testing without individualized suspicion. How that
balance on a given record might be struck is not before us. Despite hints of
the school boards, the testing here does not respond to any identified
problem of drug use by teachers or their teachers' aids or clerical workers.
The school district offered evidence that during the seven months these tests
were in place, four teachers or substitute teachers tested positive for drugs.
This datum, while troubling, is in this undeveloped form an uncertain base
for extrapolating drug use. If any of these three classes of workers were the
object of concern, workers chosen for testing are simultaneously
underinclusive and overinclusive, remarkably so. The bite is underinclusive
because only persons injured in the course of employment are to be tested. It
is overinclusive because all persons injured are tested, not just persons
injured under circumstances suggesting their fault. Stated another way, there
is an insufficient nexus between suffering an injury at work and drug
impairment. The school boards have not shown that their rules are
responsive to an identified problem in drug use by teachers, teachers' aids, or
clerical workers. Regardless, their general interest in a drug-free school
environment is not served by these rules.

”That the triggering event for testing is any injury-producing incident is no

quirk or inept rulemaking. To the contrary, the rules appear to do precisely
what they were intended to do: support the state's generalized interest in not
paying compensation claims of employees whose injury was caused by drug
use. Under the Louisiana workers' compensation scheme intoxication is a
defense to a claim. A claimant refusing ‘drug and alcohol testing’ faces a
presumption that must be overcome to be awarded benefits. The statute does
not insist upon the testing of urine. Rather, the parish boards do so and
reinforce the shifting of burdens by suspending any teacher who does not
submit to testing.” Id., at 856-57 [internal citations omitted].

In siding with the teachers and employees, the Fifth Circuit found it decisive
that the school boards had failed to offer any “legal justification” for
demanding drug testing absent individualized suspicion of wrongdoing. The
court stressed that “special needs” are just that, special – and it “cannot be
the case that a state's preference for means of detection is enough to waive
off the protections of privacy afforded by insisting upon individualized
suspicion. It is true that the principles we apply are not absolute in their
restraint of government, but it is equally true that they do not kneel to the
convenience of government, or allow their teaching to be so lightly slipped
past. Surely then it is self-evident that we cannot rest upon the rhetoric of the
drug wars. As destructive as drugs are and as precious are the charges of our
teachers, special needs must rest on demonstrated realities. Failure to do so
leaves the effort to justify this testing as responsive to drugs in public
schools as a ‘kind of immolation of privacy and human dignity in symbolic
opposition to drug use’.” Id., at 858 [internal citations omitted].

Shortly after the Fifth Circuit rendered United Teachers it once again
entered into the constitutional fray of employee drug testing in yet another
Louisiana school district case. See: Aubrey v. School Board of Lafayette
Parish, 148 F.3d 559 (5th Cir. 1998).

That case involved a custodian employed by the Lafayette Parish School

Board in an elementary school. Id., at 560. The custodian challenged
provisions of the Louisiana Drug Testing Act that subjected him to
urinalysis as a condition of employment. Id., at 561. The job duties of the
custodian included cleaning the fourth and fifth grade bathrooms; mowing
the grounds adjacent to the school building; making minor repairs to
buildings, furniture, equipment, and light pilot lights; and maintaining
HVAC equipment, cleaning and replacing light fixtures, and trimming trees.
These duties kept him in the constant presence of young students. Id.

Under the authority of the Louisiana Drug Testing Act, the Lafayette school
board in December 1992 adopted an Employee Drug Testing Policy that
authorized drug testing for “safety sensitive” employees. The custodian was
notified that he was a “safety sensitive” employee; and in September 1994
he was informed that he had been randomly selected for drug testing, along
with fourteen other employees. The custodian tested positive for marijuana.
He filed an application for preliminary injunction in federal court to keep the
school board from firing him. His application was denied and he appealed to
the Fifth Circuit. Id.

The Fifth Circuit made the following preliminary observation:

“A program which compels government employees to submit to urinalysis is

a search within the meaning of the fourth amendment because such tests
invade reasonable expectations of privacy. Such a drug test therefore must
meet the reasonableness requirement. The amendment does not proscribe all
searches and seizures, but reasonableness depends on the nature of the
search and seizure. In a situation in which the fourth amendment intrusion
serves a special government need beyond that of law enforcement, a
balancing test is required. The interest of the government must be weighed
against the privacy interest of the employee. The analysis of the privacy
interest should include not only the desire to be free from mandatory testing,
but also the intrusiveness of the particular program at issue.” Id., at 562
[internal citations omitted].

The Fifth Circuit then made it clear that its findings in Aubrey were
controlled by two Supreme Court precedents which articulated the
constitutional premise that “special needs” may outweigh the privacy
interests of individuals. Id. See also: Skinner v. Railway Labor Executives
Association, 489 U.S. 602 (1989); National Treasury Employees v. Von
Raab, 489 U.S. 685 (1989).

Having established the constitutional authority for its conclusions, the

appeals court turned its attention to the Lafayette Parish school board’s drug
testing policy:

”We first turn to the interests articulated by the Board. The Board
contends that the urinalysis was obtained to maintain the safe and
efficient operation of its schools, ensure the physical safety of the
children of Lafayette Parish, and decrease the potential spread of drug
use among its students. In pursuit of its objectives, the Board created a
list of employees who were considered safety sensitive, including
custodial employees such as Aubrey. Aubrey's duties, outlined above,
obviously are important to the efficient operation of the school. The
tasks assigned to him are important. Despite Aubrey's efforts to
minimize the importance of his duties, we are persuaded that the failure
of the Board to use significant caution in the selection and supervision
of personnel performing such duties in a school that serves nearly 900
students, ranging in age from three to eleven, could place the children at
significant risk.

”The Board also asserts that it ‘has a compelling interest and

commitment to eliminate illegal and unauthorized drug use (including
the unauthorized use of alcohol), drug users, drug activities, and drug
effects from all of its workplaces.’ The Board has not produced any
summary judgment evidence to demonstrate a problem of drug abuse or
use in its schools, and although such a showing would be of persuasive
value, it is not mandatory and such a requirement would present ‘an
unduly narrow view of the context in which the [Board's] testing
program was implemented.’ As in Von Raab, ‘petitioners do not dispute,
nor can there be doubt, that drug abuse is one of the most serious
problems confronting our society today.’ Unfortunately, neither our
workplaces nor our elementary schools are immune from the drug
scourge causing such problems in our land. The Board's program is
designed to prevent drug users from obtaining a safety sensitive position
and to aid in detecting those employees in such positions who use drugs
so that they may undergo treatment as a prerequisite to keeping their
jobs. We find the Board's interests to be substantial indeed.” Id., at 563-
64 [internal citations omitted].

The Fifth Circuit then weighed the school board’s valid and compelling
interests in the drug testing policy against the custodian’s right to be free
of governmental intrusion and his expectation of privacy in the work
place. The court overwhelming found in favor of the school board by
citing the following why the custodian’s privacy expectations gave way
to the school board’s compelling interests:

• Operational realities of the workplace may render entirely

reasonable certain work-related intrusions by supervisors and co-
workers that might be viewed unreasonable in other contexts.
• The custodian had been provided notice that he was a safety-
sensitive employee subject to random drug testing.
• The custodian’s position was safety sensitive “because of the
handling of potentially dangerous machinery and hazardous substances
in an environment including a large number of children ranging in age
from three to eleven.”
• The custodian should have reasonably expected the board’s right
to inquire into his fitness to operate and use these dangerous equipments
and material in a school setting.
• The custodian’s position has a possible impact on the physical
safety of students in their educational environment
• The presence of someone using drugs increases the likelihood that
children will have an open avenue to obtain drugs.
• The intrusiveness of the search (drug testing) was minimal.
• There was no evidence that anyone else observed, listened or
otherwise monitored the collection of the urine sample.
• The custodian was not required to disclose any personal medical
information, nor was the urine sample used for any other purpose than
detecting the presence of drugs.
• Finally, despite testing positive for marijuana use, the school
board did not fire the custodian but rather required that he submit to a
substance abuse program. Id., at 564.

The Fifth Circuit concluded its holding by distinguishing Aubrey from

United Teachers by pointing out that the school boards in United
Teachers had failed to articulate a special need for the testing in that
case while the school board in Aubrey had stated a special need—the
need to protect the children. Id.

The constitutional issue, therefore, depends upon the ability of a school

board to demonstrate a “special need” for any given search. For
example, the Lockney Independent School District in Lubbock, Texas
implemented a ‘suspicionless” mandatory drug testing program for
student athletes. A federal district court threw out the program because
the school district failed to demonstrate any “special need” for it. See:
Tannahill v. Lockney Independent School District, 133 F.Supp.2d 919
(U.S.-Lubbock 2001).

But in another school case the Sixth Circuit Court of Appeals found that
the Knoxville, Tennessee school system had articulated a special need
under its “Drug-Free Work Place Substance Abuse Policy” to justify
“suspicionless” drug testing of its school teachers and employees. See:
Knox County Educ. Ass’n v. Knox County Bd. Of Educ., 158 F.3d 361
(6th Cir. 1998).

As long as the Houston Independent School District follows the

principles set out by the courts above, it will not have a constitutional
problem establishing its school children as a special resource and its
compelling interest to protect them from either potential exposure or
access to drugs brought on campus by teachers or other employees.
While it may be questionable under United Teachers and Aubrey
whether HISD could demonstrate a “special need” for a policy that
would permit suspicionless searches of teachers and employees, or
investigative drug testing, the school district could easily demonstrate a
“special need” to search school parking lots with drug-sniffing dogs, a
far less intrusive search. A teacher or employee’s expectation of privacy
in their vehicle on a school campus parking lot would not be sufficient
to outweigh the compelling interest of HISD has in protecting students
from drugs, either through exposure or access.

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy
Sinclair